Understanding the EEOC Covid Vaccine Guidelines for Your Company

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EEOC Covid Vaccine Guidelines

COVID-19 has changed the entire workforce in less than one year. There are hundreds of thousands of people out of work, and even more now working from home. We are still trying to get a handle on the world-wide pandemic, and with the COVID-19 vaccination now approved and being distributed the workforce may change once again.

And with this change comes conflict.

Without a doubt, one of the main areas of conflict surrounds Vaccines in the workplace. Far more than just what the law will allow an employer to do, it is also what the other employees or the customers themselves think of the decision to force vaccinations or make it a personal choice. In short, what are the ramifications of a vaccination policy in the workplace?

Most polls show that employers are more likely to encourage employees financially rather than set an official mandate or requirement for the vaccine. Many companies have already done so, offering small incentives such as a discount or savings on their company health insurance for those employees that get the vaccine. You can see 10 of those employees here.

There are many questions and confusing situations being asked by employers and employees alike. The main question is:

“Can we require our employees to get the COVID-19 vaccination?”

The answer is… Yes. But with significant stipulations.

The Equal Employment Opportunity Commission (EEOC) has released guidelines for employers (and the plaintiff attorneys hoping to sue employers) surrounding this explosive subject. The EEOC Covid Vaccine Guidelines offer cautionary guidance and information on restrictions that exist between the employee and potential vaccination requirements from their employer.

These include new sections providing information to employers and employees about how their COVID-19 vaccination wishes interact with the legal requirements of Three main areas:

  • The Americans with Disabilities Act (ADA)
  • Title VII of the Civil Rights Act of 1964
  • Genetic Information Nondiscrimination Act (GINA).

Some interesting questions and answers from the publication are:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.

However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The guidance includes issues pertaining to medical pre-screening questions and employer accommodations for those unable or unwilling to receive a vaccination.

If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)


The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).

Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, maybe eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.
Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.

Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

But many employers have been asking what should be done if the employee can not provide supporting documentation. Once again the EEOC answered this query as such:

What happens if an employer cannot exempt or provide reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Can you ask your employees if they have been vaccinated? Can an employer demand proof?

The answer to this question is tricky, the answer is yes, but tread lightly with follow-up questions or comments. The quandary is if asking about possible vaccinations inquiring about an employee’s personal medical history or disability. The EEOC answered the question is it a violation to ask, like this:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The real question both employers and employees are asking was answered in the EEOC Covid Vaccine Guidelines, There is a difference from refusing to let an employee access to the workplace and employment termination. The EEOC spelled it out fairly well by writing:

What if you have an employee that refuses to get the vaccine by claiming a disability? Can they be fired?

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, maybe eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.


The world of employment and covid has never been more complicated and confusing than they are now. I encourage you to read the entire EEOC Covid Vaccine Guideline here to get the latest employment-related information surrounding the vaccination and employment.

About The Author

Bob Mather is the CEO of several employee background check, Everify, and drug testing organizations. As a Private investigator, he worked exclusively for CEO’s and human resource executives helping to uncover, investigate and bring to conclusion workplace investigation issues like harassment, discrimination, embezzlement, and more.